8 ms·

This seems to be the core point here — the US Code is a whitelist, not a blacklist: "The government's position also produces a wholly different kind of absurdi

by matsur 11y ago

This seems to be the core point here — the US Code is a whitelist, not a blacklist: "The government's position also produces a wholly different kind of absurdity: the idea that the First Congress might so thoroughly undermine fundamental principles of the Constitution that many of its members had personally just helped to write or to ratify. Its preferred reading of the law – which allows a court to confer on the executive branch any investigative authority Congress has decided to withhold, so long as it has not affirmatively outlawed it – would transform the AWA from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress's superior ability to prohibit or preempt. I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction."

acqq 11y ago
And "It is wholly implausible to suppose that with so many of the newly-adopted Constitution's drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that document's very first substantive mandate: "All legislative Powers herein granted shall be vested in a Congress of the United States[.]" U.S. Const. Art. I, § 1. And yet that is precisely the reading the government proposes when it insists that a court may empower the executive to exercise power that the legislature has considered yet declined to allow. It is a reading that thoroughly undermines both the legislature's own prerogative to reject a legislative proposal effectively and efficiently (without the need to affirmatively ban the proposed authority) and the more general protection against tyranny that the Founders believed required the careful separation of governmental powers." -- As the power that the legislature "considered yet declined to allow" the judge refers to the existing law, CALEA (Communications Assistance for Law Enforcement Act): -- "it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also" "even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe." -- Another side, according to Reuters: http://www.reuters.com/article/us-apple-encryption-deny-idUSKCN0W22Q0 http://www.reuters.com/article/us-apple-encryption-deny-idUS... "The Justice Department is "disappointed" in Orenstein's ruling and plans to ask a higher judge within the same federal district to review the matter in coming days, a department representative said."
- deleted 11y ago
  [deleted]
rpgmaker 11y ago
Thanks for highlighting this, given that "congress should change the law" is Cook's favorite cop out strategy at the moment.
- shkkmo 11y ago
  Yes, this Judge seems to agree with Cook that an act of congress is required before the FBI has the power to compel Apple's assistance in this instance. I suspect your down votes are due to the use of the phrase 'cop out'.
- hueving 11y ago
  Can you explain why you think him pointing out that he thinks the FBI has stepped out of bounds is a cop out? Isn't that the entire argument?
  - rpgmaker 11y ago
    That's not what I said. I was talking about the "congress should change the law" argument specifically. The FBI order wouldn't suddenly be ok just because congress passed a law but it sure would make it all more convenient for Apple since it would remove their "choice" in the matter and thus sidestepping a protracted legal battle with the government. All of us would be screwed though. I say this as someone that admire Cook's leadership on this issue but let's not be confused: at the end of the day he doesn't answer to you or me but to Apple's shareholders. I understand he needs to seem reasonable to the average American that may not understand Apple's argument as well as most people on HN but we can't let him sell us out in the process.
rqebmm 11y ago
I could do without the originalism. His argument that The FBI's "preferred reading of the law ... would transform the AWA from a limited gap-filling statute ... into a mechanism for upending the separation of powers" is more than strong enough without trying to divine the ideas of the long-dead creators of the law. What's important is the letter of the law, the relevant preceding decisions, and the judge's reason and conscience (which is checked by appeals). The context the law was originally written in is just fluff.
- maxander 11y ago
  Read much about legal cases and you'll quickly realize how little "the letter" of a law (or any other collection of words) really, unambiguously conveys. Context is a necessary fallback in the interpretation of law just as it is in day-to-day conversation. I haven't read this document in detail, but from what's quoted here it seems pretty obvious that the judge's argument isn't strong enough without reference to the law's creators. Its entirely plausible to imagine serious lawmakers making an AWA that was a "mechanism for upending the separation of powers". Only knowing the involvement of these same lawmakers (in part) in the law's creation is this interpretation ruled out- "orginalism" certainly, but here justifiable.
  - lmitchell 11y ago
    This is the one thing I really took away from (way too much) recent reading about Scalia and textual originalism - in my opinion, it's almost downright foolish to obey 'the letter' of the original law, and it's completely right of anyone asked to judge based on the law to do just that. I think it'd be kind of stupid in this case in particular and in all cases in general to ignore the context surrounding the law, both at the time it was written and in the present day.
    - justinmayer 11y ago
      Textual originalism is a euphemistic smokescreen, invoked to justify a position as "true" to the original intent even when the justice in question hands down opinions with no Constitutional basis. Scalia was a master at this deception, vehemently excoriating "activist" judges while simultaneously making logical leaps like "corporations are people" and "money is speech". Textual originalism is largely a fraudulent mechanism for justifying a right-wing position.
Amezarak 11y ago
> The government's position also produces a wholly different kind of absurdity: the idea that the First Congress might so thoroughly undermine fundamental principles of the Constitution that many of its members had personally just helped to write or to ratify. In 1798, the fifth Congress passed the Alien and Sedition Acts, which were signed by President John Adams, and were used to arrest or deport people critical of the government. [1] I don't think that's absurd at all. They weren't saints and they didn't have precedent to stop them from doing things like that. https://en.wikipedia.org/wiki/Alien_and_Sedition_Acts https://en.wikipedia.org/wiki/Alien_and_Sedition_Acts
- poof131 11y ago
  I’m not sure what your point is or how it contradicts the part of the opinion you quoted. Sure, the founding fathers weren’t perfect and the sedition act seems downright deplorable, but the wiki article you referenced describes how the law helped propel the Jeffersonian Democratic-Republicans to power at which point it was repealed. Seems like the process worked pretty well.
  - euyyn 11y ago
    The judge's point is "It's absurd to think the AWA was intended to be usable in this way, because it'll mean the first Congress was undermining the principles of the Constitution that they themselves wrote". You parent's point is "The fifth Congress did in fact undermine those principles in another case, so it's not so absurd to think that the AWA was intended as the government now claims". Granted, first vs fifth.
    - jibalt 11y ago
      The judge's reasoning was explicitly based on many of the Founders being members of the first Congress, so you have granted that the argument is completely bogus. And the point of the comment you're responding to is that the quoted argument is a non sequitur, which it surely is. The fact that the fifth Congress voted for a bad, self-serving law that violated the principles of the Constitution is completely irrelevant to whether the first Congress, in passing the All Writs Act, was doing the same. The argument is really quite circular: the belief that it is not absurd that the first Congress willingly violated the principles of the Constitution is the premise, not a conclusion that can be drawn from something done by the fifth Congress or the 105th Congress.
zelcon5 11y ago
Am I the only one who sees how blind it is to continue citing 18th century politicians in 2016? Can we finally deprecate the "founding fathers"?
- kevinskii 11y ago
  Who would you prefer we cite, if not those who wrote the laws that are being argued?
  - zelcon5 11y ago
    Time is relevant. It should not be treated like a footnote in considering the importance of certain laws. If Thomas Jefferson were alive today, I think he would have used military force against Apple, or at the very least threatened Tim Cook to a duel. To answer your question, the judges should cite their own judgement.
    - JoeAltmaier 11y ago
      Hm. Maybe Adams. It was Jefferson who pardoned those Adams imprisoned for sedition.
    - stickfigure 11y ago
      That you mischaracterize Jefferson as a duelist suggests that you are not sufficiently well versed in history to judge its value.
    - jibalt 11y ago
      So your argument is that, because a lot of time has passed since the All Writs Law was passed, judges should take it to mean whatever they want it to mean. On that bit about you seeing what all others fail to see, I suggest that you look up "The Dunning-Kruger Effect".
    - niels_olson 11y ago
      If you can refactor the US Code, you will either be a billionaire or dead by morning.
mmmmmjjjjjj 11y ago
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by matsur 11y ago

acqq 11y ago

And "It is wholly implausible to suppose that with so many of the newly-adopted Constitution's drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that document's very first substantive mandate: "All legislative Powers herein granted shall be vested in a Congress of the United States[.]" U.S. Const. Art. I, § 1. And yet that is precisely the reading the government proposes when it insists that a court may empower the executive to exercise power that the legislature has considered yet declined to allow. It is a reading that thoroughly undermines both the legislature's own prerogative to reject a legislative proposal effectively and efficiently (without the need to affirmatively ban the proposed authority) and the more general protection against tyranny that the Founders believed required the careful separation of governmental powers." -- As the power that the legislature "considered yet declined to allow" the judge refers to the existing law, CALEA (Communications Assistance for Law Enforcement Act): -- "it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also" "even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe." -- Another side, according to Reuters: http://www.reuters.com/article/us-apple-encryption-deny-idUSKCN0W22Q0 http://www.reuters.com/article/us-apple-encryption-deny-idUS... "The Justice Department is "disappointed" in Orenstein's ruling and plans to ask a higher judge within the same federal district to review the matter in coming days, a department representative said."

deleted 11y ago
[deleted]

rpgmaker 11y ago

Thanks for highlighting this, given that "congress should change the law" is Cook's favorite cop out strategy at the moment.

shkkmo 11y ago
Yes, this Judge seems to agree with Cook that an act of congress is required before the FBI has the power to compel Apple's assistance in this instance. I suspect your down votes are due to the use of the phrase 'cop out'.
hueving 11y ago
Can you explain why you think him pointing out that he thinks the FBI has stepped out of bounds is a cop out? Isn't that the entire argument?
- rpgmaker 11y ago
  That's not what I said. I was talking about the "congress should change the law" argument specifically. The FBI order wouldn't suddenly be ok just because congress passed a law but it sure would make it all more convenient for Apple since it would remove their "choice" in the matter and thus sidestepping a protracted legal battle with the government. All of us would be screwed though. I say this as someone that admire Cook's leadership on this issue but let's not be confused: at the end of the day he doesn't answer to you or me but to Apple's shareholders. I understand he needs to seem reasonable to the average American that may not understand Apple's argument as well as most people on HN but we can't let him sell us out in the process.

rqebmm 11y ago

I could do without the originalism. His argument that The FBI's "preferred reading of the law ... would transform the AWA from a limited gap-filling statute ... into a mechanism for upending the separation of powers" is more than strong enough without trying to divine the ideas of the long-dead creators of the law. What's important is the letter of the law, the relevant preceding decisions, and the judge's reason and conscience (which is checked by appeals). The context the law was originally written in is just fluff.

maxander 11y ago
Read much about legal cases and you'll quickly realize how little "the letter" of a law (or any other collection of words) really, unambiguously conveys. Context is a necessary fallback in the interpretation of law just as it is in day-to-day conversation. I haven't read this document in detail, but from what's quoted here it seems pretty obvious that the judge's argument isn't strong enough without reference to the law's creators. Its entirely plausible to imagine serious lawmakers making an AWA that was a "mechanism for upending the separation of powers". Only knowing the involvement of these same lawmakers (in part) in the law's creation is this interpretation ruled out- "orginalism" certainly, but here justifiable.
- lmitchell 11y ago
  This is the one thing I really took away from (way too much) recent reading about Scalia and textual originalism - in my opinion, it's almost downright foolish to obey 'the letter' of the original law, and it's completely right of anyone asked to judge based on the law to do just that. I think it'd be kind of stupid in this case in particular and in all cases in general to ignore the context surrounding the law, both at the time it was written and in the present day.
  - justinmayer 11y ago
    Textual originalism is a euphemistic smokescreen, invoked to justify a position as "true" to the original intent even when the justice in question hands down opinions with no Constitutional basis. Scalia was a master at this deception, vehemently excoriating "activist" judges while simultaneously making logical leaps like "corporations are people" and "money is speech". Textual originalism is largely a fraudulent mechanism for justifying a right-wing position.

Amezarak 11y ago

> The government's position also produces a wholly different kind of absurdity: the idea that the First Congress might so thoroughly undermine fundamental principles of the Constitution that many of its members had personally just helped to write or to ratify. In 1798, the fifth Congress passed the Alien and Sedition Acts, which were signed by President John Adams, and were used to arrest or deport people critical of the government. [1] I don't think that's absurd at all. They weren't saints and they didn't have precedent to stop them from doing things like that. https://en.wikipedia.org/wiki/Alien_and_Sedition_Acts https://en.wikipedia.org/wiki/Alien_and_Sedition_Acts

poof131 11y ago
I’m not sure what your point is or how it contradicts the part of the opinion you quoted. Sure, the founding fathers weren’t perfect and the sedition act seems downright deplorable, but the wiki article you referenced describes how the law helped propel the Jeffersonian Democratic-Republicans to power at which point it was repealed. Seems like the process worked pretty well.
- euyyn 11y ago
  The judge's point is "It's absurd to think the AWA was intended to be usable in this way, because it'll mean the first Congress was undermining the principles of the Constitution that they themselves wrote". You parent's point is "The fifth Congress did in fact undermine those principles in another case, so it's not so absurd to think that the AWA was intended as the government now claims". Granted, first vs fifth.
  - jibalt 11y ago
    The judge's reasoning was explicitly based on many of the Founders being members of the first Congress, so you have granted that the argument is completely bogus. And the point of the comment you're responding to is that the quoted argument is a non sequitur, which it surely is. The fact that the fifth Congress voted for a bad, self-serving law that violated the principles of the Constitution is completely irrelevant to whether the first Congress, in passing the All Writs Act, was doing the same. The argument is really quite circular: the belief that it is not absurd that the first Congress willingly violated the principles of the Constitution is the premise, not a conclusion that can be drawn from something done by the fifth Congress or the 105th Congress.

zelcon5 11y ago

Am I the only one who sees how blind it is to continue citing 18th century politicians in 2016? Can we finally deprecate the "founding fathers"?

kevinskii 11y ago
Who would you prefer we cite, if not those who wrote the laws that are being argued?
- zelcon5 11y ago
  Time is relevant. It should not be treated like a footnote in considering the importance of certain laws. If Thomas Jefferson were alive today, I think he would have used military force against Apple, or at the very least threatened Tim Cook to a duel. To answer your question, the judges should cite their own judgement.
  - JoeAltmaier 11y ago
    Hm. Maybe Adams. It was Jefferson who pardoned those Adams imprisoned for sedition.
  - stickfigure 11y ago
    That you mischaracterize Jefferson as a duelist suggests that you are not sufficiently well versed in history to judge its value.
  - jibalt 11y ago
    So your argument is that, because a lot of time has passed since the All Writs Law was passed, judges should take it to mean whatever they want it to mean. On that bit about you seeing what all others fail to see, I suggest that you look up "The Dunning-Kruger Effect".
  - niels_olson 11y ago
    If you can refactor the US Code, you will either be a billionaire or dead by morning.

mmmmmjjjjjj 11y ago

mmmmmmmmmmmmmmmmmmmmmmmm